Pearce v. U.S.A.

• Decision Date: 01 May 2001
• Docket Number: No. 00-5305,00-5305
• Citation: 261 F.3d 643
• Parties: (6th Cir. 2001) Kathleen Pearce, on behalf of herself and as next of kin to Jeffrey Pearce, and on behalf of the minor children of Kathleen Pearce and Jeffrey Pearce, and Annette Harris, on behalf of herself and as next of kin to Keith D. Harris, Plaintiffs-Appellants, v. United States of America, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 643

261 F.3d 643 (6th Cir. 2001)

Kathleen Pearce, on behalf of herself and as next of kin to Jeffrey Pearce, and on behalf of the minor children of Kathleen Pearce and Jeffrey Pearce, and Annette Harris, on behalf of herself and as next of kin to Keith D. Harris, Plaintiffs-Appellants, v. United States of America, Defendant-Appellee.

No. 00-5305

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 1, 2001

Decided and Filed: August 23, 2001

Appeal from the United States District Court for the Middle District of Tennessee at Nashville, No. 98-00278, Robert L. Echols, Chief District Judge. [Copyrighted Material Omitted] Douglas S. Johnston, Jr., BARRETT, JOHNSTON & PARSLEY, Nashville, Tennessee, for Appellants.

John M. Roberts, U.S. Attorney, Nashville, TN, Stephen R. Campbell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: JONES, SILER, and GILMAN, Circuit Judges.

OPINION

SILER, Circuit Judge.

Plaintiff Kathleen Pearce, on behalf of herself, her deceased husband, and her minor children, along with plaintiff Annette Harris, on behalf of herself and her deceased husband, filed suit under the Suits in Admiralty Act ("SIAA") against the defendant United States. The plaintiffs alleged that the negligent operation of the Old Hickory Lock and Dam ("Old Hickory") by the U.S. Army Corps of Engineers ("Corps") led to the drowning deaths of their husbands. After a bench trial, the district court found that the Corps was not negligent in its operation of Old Hickory and granted a judgment for the United States. Plaintiffs appeal that judgment. We affirm.

I. Background

Old Hickory, located on the Cumberland River above Nashville, Tennessee, is owned and operated by the United States through its agency, the Corps. The general public uses the waters above and below the dam for recreation, particularly fishing.

On July 29, 1997, Jeffrey Pearce and Keith Harris ("decedents") went fishing at Old Hickory. Throughout their fishing trip, they were observed by other fishermen. At approximately 4:00 p.m., the decedents launched Pearce's boat from a boat ramp located below the dam and, not wearing life jackets, drove the boat upriver toward the dam's powerhouse. Traveling through turbulent water containing "boils," which were created by discharges of water from operating turbines, they steered their boat to an area below the dam called the "taildeck." After arriving at the taildeck, they drove their boat into a turbine opening to fish. Once inside the dam opening, they secured their boat to the dam by tying it to a nail that was driven into the dam structure.

Nine warning signs were along the route from the boat ramp, where the decedents launched their boat, to the dam opening, where they fished. Two large signs read, "Warning: Life Jacket Required from Here to Dam." Four read, "Danger: Water Subject to Sudden Rise and Violent Turbulence." And three more, which were posted on the dam itself, read, "Turbulent Waters: Keep Out." Additionally, a navigational chart clearly marked the area above and below the dam, including the turbine openings, as "Danger Areas." This navigational chart was available to the public when the decedents went fishing on July 29, 1997.

Despite warning signs and the navigational chart that warned of danger, the decedents entered the dam opening and fished from their boat. There were no boils in the spot where they fished but, nonetheless, boils were "all around the dam." Other fishermen noticed that, while fishing inside the dam opening, the decedents were not wearing life jackets, which were required under Tennessee law, but none could say whether the decedents were wearing life jackets at the exact moment of their accident. The district court found that "the evidence strongly suggests that neither of the Decedents was wearing a life jacket immediately prior to the accident."

At approximately 6:20 p.m., the dam's shift operator turned the turbines off the condensing mode, which involved opening the gates to allow water to enter the turbine chambers. This procedure created turbulence and a powerful undertow. Hearing a grating sound that signaled to him that the gates were opening and a release was imminent, another fisherman yelled to the decedents to get out of the dam opening. The decedents were unable to start their boat's engine or untie their boat from the dam and, as a result, their boat was washed upward by the turbulence, they were thrown out, and they drowned. When their bodies were recovered by rescue workers, they were not wearing life jackets.

Their representatives sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), and the SIAA, 46 U.S.C. §§ 741-752, alleging that the Corps' negligent operation of the dam caused the drowning deaths of their husbands. The plaintiffs alleged that the Corps was negligent in failing to: 1) install adequate signs warning about the changing nature of turbulence; 2) restrict recreational users from using the waters below the dam; 3)take reasonable steps to audibly warn those in a danger zone of an impending release; and 4) install working warning sirens.

After a bench trial, the district court held that the United States was not negligent and, hence, not liable for the deaths because: 1) the plaintiffs failed to prove by a preponderance of the evidence that the Corps breached its duty to warn adequately of danger at the dam; 2) the proximate cause of the deaths was decedents' failure to use reasonable care for their own safety by ignoring warning signs, failure to avoid open and obvious danger indicated by boils in the water, and failure to wear life jackets; and 3) even if the Corps was negligent, the Tennessee Recreational Use Statute ("TRUS") precluded liability.

II. Standard of Review

"Generally, when reviewing a district court's determination of negligence in an admiralty action, this court is not to overturn that finding unless it is clearly erroneous.... A finding is 'clearly erroneous' if the reviewing court is left with the definite and firm conviction that a mistake has been made after examining all of the evidence." Graves v. United States, 872 F.2d 133, 136 (6th Cir. 1989) (citations omitted). Questions of law are reviewed de novo. See Johnson v. Jones, 149 F.3d 494, 499 (6th Cir. 1998).

III. Discussion

A) Applicable Law

"Claims for which a remedy is available under SIAA are not cognizable under FTCA." Estate of Callas v. United States, 682 F.2d 613, 619 n.7 (7th Cir. 1982). The "SIAA permits suits in admiralty against the United States '[i]n cases where... if a private person or property were involved, a proceeding in admiralty could be maintained....' That is, it renders the United States liable to suit to the same extent that a private person would be liable." Faust v. South Carolina State Highway Dep't, 721 F.2d 934, 938 n.2 (4th Cir. 1983) (quoting Lane v. United States, 529 F.2d 175, 179 (4th Cir.1975)). In Norfolk Shipbuilding & Drydock Corp. v. Garris, 121 S. Ct. 1927, 1933 (2001), the Supreme Court held that wrongful death actions based on negligence are actionable in admiralty. Because the SIAA provides a remedy for the plaintiffs' claims, the district court correctly dismissed the plaintiffs' FTCA claims. Accordingly, the only claims before us are SIAA claims.

The plaintiffs argue that, in analyzing its claims under the SIAA, we should apply Tennessee state law. However, general admiralty law, not state law, governs claims resulting from maritime deaths in territorial waters. See National Enters., Inc. v. Smith, 114 F.3d 561, 565 (6th Cir. 1997) ("When a district court exercises its admiralty jurisdiction, that court must apply admiralty law, rather than state law, to the case before it."). To be successful in its suit against the United States, the plaintiffs needed to establish all elements of a negligence cause of action in admiralty. Those elements, "which are essentially the same as land based negligence under the common law," are: 1) the existence of a duty of care owed by the defendant to the plaintiff; 2) the breach of that duty of care; 3) a causal connection between the offending conduct and the resulting injury, which is called "proximate cause"; and 4) actual loss, injury or damage suffered by the plaintiff. 1 Thomas J Schoenbaum, Admiralty and Maritime Law § 5-2, at 170 (3d ed. 2001) (footnotes omitted).

B) Discussion

The crux of the plaintiffs' appeal is that the Corps' failure to have a working audible horn warning system at Old Hickory on the date of the decedents' accident constituted negligence per se. We reject the negligence per se argument and affirm the district court's verdict in favor of the Corps. The bases of our holding are that the Corps did not breach any duty owed to the decedents, and its actions or inactions were not the proximate cause of their deaths.

i) Duty of Care

The plaintiffs argue that two regulations with the "force of law" created specific duties that the Corps owed to the decedents. Chrysler Corp. v. Brown, 441 U.S. 281 (1979), states: "It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the force and effect of law." Id. at 295, 99 S. Ct. 1705 (internal quotation marks omitted). To have the force and effect of law, a regulation must have certain characteristics and be the product of certain procedural prerequisites. See id. at 301, 99 S. Ct. 1705. Also, a regulation must be a substantive rule and not an interpretative rule, general statement of policy, or rule of agency organization, procedure, or practice. See id. at 301-02, 99 S. Ct. 1705. Beyond being substantive, a regulation "must be rooted in a grant of [quasi-legislative] power by the Congress and subject to limitations which that body imposes" to have the "force of law." Id. at 302, 99 S. Ct. 1705.

Plaintiffs contend that two regulations had the force of law and created...